Developments requiring further attention
NATIONAL: Research to address lacking data on impacts on children as a result of parental imprisonment
Advocacy groups such as Flat Out Inc. have criticised the fact that there is very little research in Australia on the number of children with parents in prison or the effects of that imprisonment. 
Institute of Child Protection Studies researcher Vicky Saunders says families are often forgotten when a person is incarcerated: “we have very little data in Australia that highlights the number of parents who have got children when they are in prison.” 
For the first time in decades, the Australian Catholic University  and the Monash Criminal Justice Research Consortium  (due for release in 2014) are each undertaking research into children and young people who have a parent in prison.
While this development will be beneficial for further development of policies relating to such young people, it is unacceptable that such data does not already exist in Australia and that this research is not undertaken regularly. Children whose parents are placed in prison may be vulnerable to behavioural and family issues and are deprived of their basic rights through separation from their parents. Additional and regular research is required to ensure children and young people whose families are at risk of separation as a result of imprisonment, or who have been affected by imprisonment, are receiving the assistance they require.
Areas lacking progress
NATIONAL: Common law continues to prevent consideration of children in parental sentencing
It is estimated that up to 85% of female inmates in Australia are parents of dependent children and heads of single parent families,  while Indigenous women are one of the fastest growing prison populations in Australia.  It is also estimated that there are two children for every three men imprisoned.  However despite these high rates of parental imprisonment, and the impact on children who are deprived of their right to family, the common law continues to only consider a person’s dependent children in sentencing when such circumstances are deemed ‘exceptional’.
Both the CRC and bodies such as the Anti-Discrimination of Queensland state that imprisonment should be a last resort for single parents with dependent children as, “[t]he incarceration of a parent can significantly affect a child and lead to social, behavioural, emotional and psychological difficulties as well as physical and mental health problems”. 
Under recent Federal legislative amendments, courts must take into account “the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.”  A similar provision also exists under the South Australian Act. 
In most Australian states however, the common law continues to follow the principle that hardship to children as a result of parental imprisonment should only be taken into account where the effect would be ‘wholly’ or ‘highly’ exceptional.  This is despite the fact that Federal legislation itself does not apply such a test:  judges have instead claimed that the amendment ‘was not intended to change the common law’. 
In considering what constitutes an exceptional case, the WA Court in Nguyen v The Queen,  found that to establish exceptional hardship, the defendant must show that imprisonment would cause such harm to the family, “considerably more severe than normal for a family where the [parent] is imprisoned.” In this case, both parents were subject to custodial sentences for the same offence and the leaving of children without any form of parental care was considered exceptional.  However, this test does not assist the many other children who are deprived of one parent or where exceptional circumstances are not proved.
Only the ACT judiciary has adopted routine consideration of the impacts of parental imprisonment on children into its common law, as seen in the case of R v Ashman.  In that case, the ACT Supreme Court recognised that the right to family and the best interests of children under the Human Rights Act 2004 (ACT) may be relevant to the sentencing of a parent or guardian. The Court applied the principle in this case that while it could not give undue weight to personal factors, it should also not be limited to assessing such impacts only in exceptional cases.
Courts have also generally refused to consider pregnancy as a mitigating factor to prevent a custodial sentence,  except where it can be proved as an onerous and unfair burden,  or as evidence of rehabilitation. 
The Anti-Discrimination Commission in Queensland has stated that it is concerned that case law on sentencing of parents of dependent children is not fully recognising the principle set out in Article 3 of the Convention on the Rights of the Child, that the best interests of the child shall be a primary consideration of courts of law in all actions concerning children.  The Commission has argued that the best interests of affected children should always be a consideration and that state legislation should be amended to reflect that principle.  This reflects the views of the CRC and should be incorporated into legislative and judicial arrangements.
This failure of the judiciary to adequately reflect children’s rights and incorporate such principles clearly into sentencing must be remedied immediately. In order to do this, the legislature must immediately enact legislation specifying that children’s best interests must be considered in sentencing in all cases and that custodial sentences only be applied to parents of dependent children where there is no alternative.
Academics have argued that the implementation of formal family impact statements could assist with providing a more thorough assessment of children and their families, with attention to be paid to likely impacts of sentencing on dependent children.  Only this level of consideration would permit children the right to have their voices heard in legal proceedings which affect them, as provided by the Convention on the Rights of the Child. 
NATIONAL: Increasing imprisonment rates and failure to adequately consider alternatives to imprisonment
The prisoner’s rights advocacy group Flat Out Inc. have correctly stated that, “[p]olicing, criminalisation and imprisonment are punitive and reactionary responses to social and economic inequities,” and that, “investing in community supports and critical social services rather than expanding the criminal justice system’s reach, is a more effective way of creating community safety.” 
However, the rate of parents of dependent children being imprisoned in Australia continues to be of great concern, with little evidence of policies to provide alternatives to prison. A report on sentencing outcomes by the Victorian Sentencing Advisory Council in 2010 indicated that there was an increase in the proportion of both men and women being sentenced to imprisonment in the higher courts, as well as an increase in the average length of imprisonment terms.  Although “there is almost no public information available about how many prisoners have children, where the children are, or how they are cared for,”  it is estimated that up to 85% of female inmates in Australia are parents of dependent children.  It is therefore alarming that the rate of women being imprisoned has increased by 48% since 2002.  However, there is no evidence to suggest that an increase in actual crime has accounted for this prison increase. 
Indigenous female offenders also face higher vulnerabilities to imprisonment and separation from children, with 27% of the total prisoner population identifying as Aboriginal or Torres Strait Islanders in 2012.  Indeed, the rate of indigenous incarceration in Australia is currently more than 15 times higher than non-Indigenous persons.  In a Western Australian study, it was found that 67% of female prisoners had dependent children  and that more than half of the total women in prison were Aboriginal.  These figures are alarming not only in relation to the ability of the prison system to cope with visitation of imprisoned parents by children but also the general health and other effects of an increasing number of children in Australia who have one or more incarcerated parents and may be subjected to non-familial care.
Studies also indicate that Indigenous women generally serve shorter sentences, suggesting they are being imprisoned for more trivial crimes, such as public order offences.  They are more likely than non-Indigenous women to be on remand.  As prisoners who are on remand are usually not eligible to participate in diversionary or other rehabilitation programs,  this often places Indigenous women in particular at a greater risk of re-offending and creates a greater risk to dependent children of continued separation from their parent.
The Australian government has clearly failed to adequately address these figures and the increasing number of Aboriginal women being separated from their children and sentenced to imprisonment for minor criminal offences. The government must seek to consider alternative methods to imprisonment for parents of dependent children, as well as offer early intervention programs to vulnerable families.
Indeed, the increase in the rate of parents, and particularly women and indigenous women, being imprisoned in Australia are very alarming considering the negative effects parental imprisonment has on dependent children. Children of incarcerated parents are often more susceptible to long-term emotional and behavioural issues, stigmatisation, disruption in living arrangements and separation from family, as well as economic loss as a result of the imprisonment of a parent.  Relationships between parents and children are difficult to maintain in prison, particularly for prisoners from low-socio economic backgrounds who may not be able to afford to pay for phone calls to family or whose family is not able to make regular visits. 
A recent report by Dr Lorana Bartels at the Australian Institute of Criminology has found that diversionary programs for Indigenous women in particular are greatly lacking and that, “there is a relative paucity of programs and reliable information of the effectiveness of such programs.”  Although programs such as the Karrka Kirnti Aboriginal Women’s Program (NSW) and the Aboriginal Women with Dependent Children Leaving Prison Program (NSW) do exist and are to some degree government funded, many at-risk persons do not have access to such programs and there is very little research or data currently being performed in relation to their effectiveness or the need for further development. 
The Anti-Discrimination Commission of Queensland has cited international examples of potential alternatives to imprisonment, particularly for mothers of young children, including suspended sentencing and housing of women in units attached to but outside of prisons, finding that:
the Queensland Government, with the assistance and cooperation of the judiciary, should develop alternatives to custodial settings for many female offenders serving relatively short sentences, particularly when they are the mothers of dependent children. These alternatives include home detention, periodic detention and community service orders. Alternative and improved sentencing options, which still hold female offenders accountable for their actions, should be implemented. 
However, at present the government has not sought to redress the increasing numbers of parents in prison, particularly mothers and indigenous women, through any new policies or initiatives. The government must seek to immediately redress this failure by mandating new diversional programs, alternatives to imprisonment and legislating that prison is only to be considered as a last resort for offenders with dependent children. The needs and rights of dependent children whose lives will be affected as a result of imprisonment of parents should be considered at all stages of the decision-making process and the voices of those children should be included in sentencing processes.
In order to satisfy the recommendations of the Committee on the Rights of the Child, the Australian government must also seek to implement targeted programmes to support families at risk of offending or re-offending and to avoid the separation of children from their family members through diversion programs and alternatives to imprisonment.
NATIONAL: Failure to provide adequate assistance to children and families of incarcerated parents
As found by Defence for Children International, “there remains a very significant lack of State or Federal Government action of any kind to provide assistance to the children and families of prisoners.”  There is currently no special government allowance program or monetary scheme to ensure that families of prisoners and children of incarcerated parents are not significantly disadvantaged by the loss of, in many cases, the family’s main source of income. 
As Aboriginal women are more likely to be imprisoned than non-Aboriginal women, and many are sole care-givers, an increasing number of Aboriginal children are faced with maternal deprivation and loss of economic and emotional support.  As found by Tauto Sansbury, former Chair of the National Aboriginal Justice Advisory Committee, “the impact will continue to be felt by every child who has been deprived of a parent, who has seen their parent locked up, who [knows] what it is to fear the justice system.” 
The Australian governments must seek to redress the entrenched disadvantages faced by children of incarcerated parents by establishing widespread emotional and financial support services for children and their families during parental separation. Such support services should be extended to provide support services to families at risk of separation as a result of criminal behaviour, including early intervention programmes and targeted support for at-risk families in accordance with the recommendations of the Committee on the Rights of the Child.
NATIONAL: Poor planning for children in visiting options
The Anti-Discrimination Commission of Queensland in its 2006 report found that where mothers of dependent children must be incarcerated, “all attempts must be made to maintain the attachment bond between mother and child, particularly a child under five years.” 
However, recent interviews with children of incarcerated mothers have shown such children are typically displaced from their homes in unplanned ways, experience sustained separation from their mothers and often experience visiting their mothers in poor visiting conditions on an infrequent basis.  When surveyed, women in the New South Wales prison system identified a need to have more flexible and more frequent visits with children and family. 
While some facilities in particular states have the capacity to house babies and pre-school aged children with their mothers in prison, the limited space in female prisons for such schemes is a major problem. This shortage of places for mothers and children within existing prisons, and concerns about the suitability of prisons as a placement for young children, suggest a need for,“purpose-built facilities that put the best interests of the child first.” 
As a result of the limited number of prisons specifically for women, Indigenous women in particular are often detained in centres located at great distances from their children and communities.  In addition, they may face communication difficulties, affecting the coordination of visits and thus their ability to maintain contact with children. A study of women prisoners in Western Australia indicated that many Indigenous women spoke an Aboriginal dialect as their first language. 
Recent studies have found that although around 80% of Indigenous female prisoners are mothers, they do not appear readily able to access Mother’s and Children’s Units in prisons.  Further research is required to better understand the needs of Indigenous women with infants and young children in prison and the appropriateness and ease of access to programs which enable such prisoners to keep their children with them.
The Australian Human Rights Commission supports the prospect that, “women need to maintain contact with their children while they are incarcerated” and where that is not possible, “they need to be provided with information as to the well-being of their children. Women need support when they resume contact with their children.” 
Although prison-based initiatives such as ‘Kid’s Days’ have been successful in promoting parent-child contact, prisoner’s rights groups continue to complain that the cost of telephone calls, the expense of arranging visits and ‘tense’ or inadequate prison facilities to receive children negatively affects their relationship with their children.
The government must seek to develop more effective programs in order to promote contact and the continued relationship of parents and their children while in prison.
VIC: Removal of home detention as a sentencing option
The Sentencing Legislation Amendment (Abolition of Home Detention) Act 2011 came into effect in Victoria in January 2012, removing the ability of judges and magistrates to order home detention as a sentencing option.
This is despite the fact that the program yielded a cost benefit: that for every dollar spent, $1.80 was saved in benefits. Furthermore rates of recidivism were lowered and no significant risk was identified to family members who were involved in the program. In fact, outcomes for family members were actually improved by the program. 
The removal of home detention was simply a political act for an incoming government to fulfil its electoral promise to be ‘tough on crime’  and did not consider the positive impacts the scheme was making on the ability for prisoners, particularly female prisoners, to stay at home with their families and continue contact with their children.
The Victorian Greens expressed their dismay at the axing of the scheme, stating that it had been abolished despite that, “an evaluation done in 2006 found that, all things considered, home detention was more positive than negative for offenders and their co-residents or family.” Greens spokeswoman Sue Pennicuik MLC also stated that evidence, “indicated that women were more likely to be accepted for home detention orders and I think that given the very concerning recent rise in the number of women in prison, it is a real shame that this option has now been removed.” 
The Victorian government in this case has failed to consider the impact on children of incarcerated parents in no longer providing the option for offenders with short sentences or dependent children to serve their sentence in their family home. The government should reinstate the scheme or other mechanisms as alternatives to custodial imprisonment in order to prevent imprisonment and the separation of parents and children.